JAPAN Law and Practice Contributed by: Hiroki Wakabayashi, Kenichi Sadaka and Kei Akagawa, Anderson Mori & Tomotsune
to provide security for the court costs, which include court filing fees, fees for court-appointed profession- als, and very limited costs of the defendants, exclud- ing attorney’s fees (Article 75 of the CCP). Separate from the above, in a case where interim relief is granted, the court normally requires the applicant to make a security deposit for potential damage due to that interim relief (Article 14 of the CPRA). 4.6 Costs of Interim Applications/Motions Interim applications or motions are typically addressed within the same proceedings as the substantive issues. In most cases, court fees are either not required or are fixed at a modest amount specifically stipulated for each application, making such fees relatively inexpen- sive. If fees are applicable, they, along with other court costs (excluding costs for provisional remedies, which are separately assigned, and attorney’s fees, which are wholly borne by the party that retained them), are generally assigned to the losing party or, in a case where the plaintiff’s claim is partially approved, allo- cated proportionally to the respective parties when the judgment is issued. 4.7 Application/Motion Timeframe If a party requests urgent interim relief, the court may deal with the application/motion within a timeframe corresponding to the urgency of such relief. In any case, the court will deal with such an application/ motion on a case-by-case basis. If the issue is not urgent, the court may choose to resolve it as part of its decision on the merits. The CPP provides limited scope for document pro- duction. A litigant must file a petition with the court, clarifying the indication, the purport, the holder of and the facts to be proven by the documents sought, as well as the grounds for the obligation to submit the documents (Article 221 of the CCP). Deposition (taking of witness testimony in advance of the evi- dentiary hearing) is not available in ordinary circum- stances. Having said that, if the court finds that there are extraordinary circumstances under which it would 5. Discovery 5.1 Discovery and Civil Cases
be difficult to examine the witness at the evidentiary hearing, it may examine the witness in advance (Arti- cle 234 of the CCP). 5.2 Discovery and Third Parties A litigant can file a petition for document production against a third party. Where the court intends to order a third party to submit a document, it will hear the third party prior to the ruling (Article 223 (2) of the CCP). 5.3 Discovery in This Jurisdiction The scope of discovery is very limited, in that the CCP does not provide for deposition per se and it allows various exceptions to the obligation to produce docu- ments. 5.4 Alternatives to Discovery Mechanisms As in other civil law jurisdictions, litigants are expected to rely primarily on the evidence that they already have in their hands prior to the litigation. 5.5 Legal Privilege In civil litigation, no legal privilege is recognised per se, but lawyers may refuse to testify or produce docu- ments relating to any fact which they have learnt in the course of providing legal services and which should be kept confidential (Article 197 and Article 220 of the CCP). 5.6 Rules Disallowing Disclosure of a Document Article 220 of the CCP provides that a person may refuse to disclose any of the following: • a document relating to matters for which they or their close relative are likely to be subject to crimi- nal prosecution or conviction; • a document concerning a secret in relation to a public officer’s duties, which is, if submitted, likely to harm the public interest or substantially hinder the performance of their public duties; • a document stating: (a) any fact that a doctor, dentist, pharmacist, pharmaceuticals distributor, birth assistant, attorney at law (including a registered foreign lawyer), patent attorney, defence counsel, nota- ry or person engaged in a religious occupation, or a person who was any of these profession-
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